Ask Korea Law

Published by Chung & Partners Since 2008


[Q&A] Can I Enforce My Washington State Child Support Ruling in Korea?

(Question) I have a question regarding my current situation with my ex-husband. He is a Korean national and working there in South Korea.  I lived there until 2014 when I came back to Washington and filed a divorce complaint here. Since then he has refused to speak with me.  This year my US lawyer duly served him with the paper but he just kept ignoring it.  At any rate, I got a divorce decree and child support ruling for my baby this April.  Now I am wondering how I can enforce my US ruling in Korea, knowing that he is living a  luxurious life and feels that he can just ignore his child and the responsibilities that come with it.

(Answer) I have to say that there is something unclear in this case.  If the court proceedings in Washington(WA) court have been duly made, i.e. (i) the WA court had proper jurisdiction and (ii) he was duly served, you can apply for its execution in Korea. Otherwise, you may initiate the whole process de nuvo in Korea.  The second threshold seems to have been met here. Thus, the real issue here rather is the first one.

Please note that the jurisdiction must be acknowledged in the view of Korean law, not the WA law. Thus, even though the WA ruling says the WA court has proper jurisdiction, the Korean court will Continue reading

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I Work for the Korean Branch of U.S. Company. My Employment Contract Provides U.S Law Shall Apply and Severance Pay Is Not Granted. Can I Still Get a Severance Pay Pursuant to Korean Labor Laws?

Question) I am an American citizen working in South Korea.  Originally I was working for a U.S. company incorporated in the state of New York, but 3 years ago I was seconded to the Korean branch of my U.S. company, and have been working for the branch until now.  When I was seconded, my new employment contract provided that the New York state law shall apply to my employment relation in Korea.  Now, my employment contract is expiring and I would like to know whether I am entitled to the severance pay under the Korean labor law.  I know my employment contract and my company’s policy do not provide the right to severance pay.  But, as I have been working in Korea for 3 years, I am wondering if the statutory rights of severance pay under the Korean labor law could be given to me.

Answer) The answer is Yes.  You are entitled to the severance pay under the Korean labor laws.  (check here as to how the severance pay under Korean law is recognized and operates)  This answer could be accepted quite surprising considering the fact that the parties had previously agreed (i) the Korean labor should not apply and (ii) the severance pay should not be awarded.  How come the Korean labor law intervenes in the parties’ employment relation which is seemingly irrelevant to the Korean law implications other than the fact that the workplace of the employee is in Korea?  The answer lies in the provisions of the Private International Act of Korea which provide the general principles for the choice of law in Korea.

When a legal relation has certain foreign elements, the court must decide which jurisdiction’s law shall apply to interpret that legal relation.  In Korea, the Private International Act provides the general rules and principles for the governing laws of the various types of legal relations.  Specifically, the Act provides that if the employer and employee agree to their own choice of law, the employment contract is governed by the law chosen by the parties.  But, this does not mean the parties can freely determine which law and regulations apply to their employment relation.  It is true in Korea that the party autonomy is a general principle of governing laws, but party autonomy is subject to limits imposed by the overriding public policy and mandatory rules.  Accordingly, Continue reading

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What Constitutes Unfair Business Practices in International Contracts Such as Copyright License Contract or Import Distribution Contract under Korean Laws?

“X Company” is a U.S. company which provides and sells Software Products in Korea through appointment of local distributors.  “X Company” would like to review its standard distribution contracts (the “Reseller Terms”) with Korean distributors and want to know whether there are any clauses in the Reseller Terms that may be deemed illegal under the laws of Republic of Korea.

In view of the nature of the Reseller Terms, under the Monopoly Control and Fair Trade Act of Korea (“MCFTA”), the type of the Reseller Terms may be characterized as both a “copyright license contract” and an “import distribution contract.”  MCFTA has published guidelines on the types and criteria for determining unfair business practices in international contracts (the “Guidelines”), and the Reseller Terms would need to be reviewed against the Guidelines.

For example, paragraph 11 of Article 3 (Transfer of Improvement Technology) of the Guidelines provides that “When a licensor requires a licensee to provide the licensor, without compensation, with the ownership of or the exclusive (non-exclusive) right to use the technology (product) improved by the licensee…,” the practice shall be unfair.

Moreover, because the Reseller Terms is a standardized type of contract applicable to all local distributors, the Reseller Terms may come into the purview of the Regulation of Standardized Contracts Act (“RSCA”).  The purpose of RSCA is to prevent business entities from imposing standardized contracts on their customers containing unfair terms and conditions that Continue reading

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Can an Employment Contract Entered in South Korea Exclude a Jurisdiction of Korean Court?

Recently I got a question about a jurisdiction of legal dispute arising of a labor contract made between a Korean company and a foreigner here in Korea.  The foreigner told me his contract had an exclusion clause which ruled out the jurisdiction of Korean court.

According to Article 2(1) of the Private International Act, a Korean court shall have the jurisdiction over an international trial in the case where the parties or the issue has substantial relation to South Korea, and according to Article 28(5) of PIA, the parties of an employment contract may make an agreement on the international jurisdiction only in cases where a dispute has already occurred or an employee is allowed to bring a lawsuit to a court in addition to the governing court in accordance with the PIA.

So even if parties of an employment agreement had agreed to rule out the jurisdiction Continue reading

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How Does the Korean Court Confirm the Meaning and the Contents of Foreign Laws Applicable to Legal Relations Having Foreign Elements?

According to article 5 of the Private International Act(“PIA”) of Korea, a court shall investigate and apply the contents of the foreign law designated by the PIA on its own initiative. However, sometimes it’s not easy for Korean court to confirm the right meaning and contents of foreign laws.

In this regard, the Supreme Court of South Korea has ruled as follows, in a case where the both parties had different interpretation of relevant Polish laws in deciding who’s the real owner of a ship registered in Poland(2006da5130):

“In confirming the content and interpreting the meaning of foreign laws and regulations to be applied to legal relations having foreign elements, the interpretation and application shall be made in accordance with the meaning and the content through which the foreign law is actually interpreted in the home country, and the judgment by the highest court of the home country, unless under special circumstances, shall be respected, but if it is impossible to confirm the content because of the insufficiency in submitted data in the process of a suit about Continue reading